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Abstract

Confirming a trend started with the Gebhard judgment, and consistently
with its case law on free movement of capital, the Court in Caixa-Bank held
that a non-discriminatory rule prohibiting remuneration on sight accounts is
an unjustified barrier to the freedom of establishment. Even though the ruling
is consistent with the previous broad interpretation given to the free
movement provisions, the case is exemplary of the issues arising once a supranational
court decides to substitute its own judgment for that of the competent
regulator. Thus, in just twenty-four paragraphs and with no market
analysis, the Court is satisfied that the rule is a barrier to market access, and
that, even though the rule “is indeed suitable for encouraging medium and
long-term saving”, it is not justified. No consideration is given to the fact
that regulation in a field as complex as the banking sector, where the consumer
might be particularly vulnerable, is informed by complex policy
choices, and might pursue welfare as well as economic aims. Once more
then the Court has decided to substitute its own judgment for that of the national
regulator in relation to measures which did not discriminate against
foreign undertakings; this time however it is not clear that the Court’s assessment
strikes the correct balance between market deregulation and consumer
protection.